[WSBARP] Community property or not?

[Kary Krismer]

This is the law as I understand it for property purchased after marriage 
(not a gift or inheritance) based on two "oldie but goodies" cases:

"Therefore, in any controversy, the deed standing alone and 
uncontradicted by any evidence, affords what amounts to a conclusive 
presumption that its
subject-matter is common property. But the assertion of an exception 
merely requires the production of proof either that the conveyance was 
in fact a lawful gift, or that the consideration was furnished by 
husband or wife individually out of funds or property which he or she 
was entitled, under the law, to hold as separate property. Whatever 
satisfies the court or jury of the truth of one or the other of these 
probative facts, will authorize the finding of the ultimate
fact that the subject of the conveyance was separate and not common 
property, and thus the presumption will be overcome."

Yesler v. Hochstettler, 4 Wash. 349 (1892)

"Under our somewhat perplexing statutes relating to the acquisition of 
property, title to real property taken in the name of one of the spouses 
may be the separate property of the spouse taking the title, the 
separate property of the other spouse, or the community property of both 
of the spouses, owing to the source from which the fund is derived which 
is used in paying the purchase price of the property. If the fund is 
derived from the separate property of one of the spouses, the property 
purchased is the separate property of thatspouse; if it is derived from 
the community property of both the spouses, it is the community property 
of both of them.

The instances in which we have held that property purchased from the 
separate funds of one of the spouses and title taken in the name of the 
spouse furnishing the funds is the separate property of that spouse, and 
the instances in which we have held that property purchased with 
community funds is the property of the community, notwithstanding the 
title may have been taken in the name of one of the spouses, are too 
numerous to admit of citation here."

/Merritt v. Newkirk/, 155 Wn. 517, 520-21 (Wash. 1930)

Kary L. Krismer
206 723-2148

On 1/26/2022 12:15 PM, Kary Krismer wrote:
> The issue I would have is would Washington consider the Oregon stock 
> to be separate property AFTER the couple moves to Washington IF both 
> spouses work in the corporate business AND IF they don't take an 
> adequate salary for their efforts?  It's a conflict of law question I 
> don't remember the answer to, but I think Washington might consider 
> that stock CP on the right facts even though the corporation is based 
> on Oregon (basically apply Washington law). That this is a question of 
> the ownership of real property in Washington would be another reason 
> for the court to apply Washington law.
>
> If the stock were SP when the Washington real property was purchased I 
> don't see any reason why the real property wouldn't have been SP at 
> that time.  But if the status of that stock could have changed over 
> time after moving to Washington, I don't see any reason the real 
> property wouldn't change in status up to the point it was transferred 
> into the husband's name.
>
> Couldn't this all be dealt with by a QCD from H&W to H as separate 
> property right before transfer into the trust?  Would W need separate 
> counsel prior to signing that deed?
>
> Kary L. Krismer
> 206 723-2148
>
> On 1/26/2022 10:25 AM, Douglas Owens wrote:
>> Dear Listmates, I ask for your views on these questions: H and W are 
>> Oregon residents, H owns all shares in an Oregon corporation that is 
>> in the construction business, corporation acquires real property in 
>> Washington which is financed with first and second mortgages, then 
>> spouses move to Washington, live in the house on the real property 
>> and the corporation transfers title to H “a married man” as a 
>> transfer exempt from REET as a mere change in form of ownership.  Is 
>> this property now community property?  H and W want to transfer into 
>> a trust which is not structured as a community property owning entity 
>> but it can be reformed.  Does H need formally to convey to the 
>> community before transferring into the trust?  Thank you for your 
>> help.  Yours truly. Doug Owens
>>
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